HH: Joined now from the Cloak Room of the United States by our great conservative friend, Senator Jon Kyl of Arizona. Senator, always a pleasure to have you on. Thanks for coming back.

JK: Thank you, Hugh, very good to be with you and all your listeners as well.

HH: Do you want to start by giving us some sense of where you think we are on the immigration bill?

JK: Sure. We will take it up, we’re still debating it tonight, there won’t be any more votes tonight, we take up a bunch more amendments tomorrow, and then we are going to temporarily turn to the security supplemental after the House has passed it. That’s the bill to fund our troops. And we will probably conclude that late tomorrow night. And that probably will be the end of the action for this week, prior to the Memorial Day recess. I would be happy to work all day Friday, if possible, to get some more work done on the immigration bill, but my guess is late Thursday night will be it. Then we will come back after the Memorial Day recess, which is one week, and take up the bill again. And we have at least a week of work to do on various amendments.

HH: Now I want to get into some specifics. I just spoke with Secretary Chertoff last hour, and one of the things we figured out is that while no new border fencing has been constructed and completed since the bill passed last year, 75 miles are under construction of new fencing that’ll be done by the end of September. Do you see some amendments that have to come to the fencing provisions in this bill, Senator Kyl, to gather more support for it?

JK: Actually, let me…Secretary Chertoff and I were down on the border in Yuma, and they are building miles of fences as we speak. We saw them actually pound these great big things into the ground with this big pile driver. I mean, they’re adding fencing, a few miles, every day. They’re up to about 80 miles right now. But you’re correct that they’re…in fact, we just accepted an amendment by Senator Gregg from New Hampshire, that will up the levels of some of the items that have to occur with the triggers, added a hundred miles of vehicle barriers, several more radar, I’ve forgotten the exact numbers, another 2,000 Border Patrol agents, and some other items, before the triggers would take effect, if that amendment was adopted.

HH: And so it’ll be, is it still 370 miles?

JK: The fencing is still at 371, but some of the other items were added to it.

HH: Is there a magic number about the 371, Senator?

JK: No, it’s just that that’s what they’ve contracted this stuff out, and based upon the amount of money that has been appropriated, and the number of miles that they think they can build per day if the equipment doesn’t break down, they’ve got it calculated right to the number of 371.

HH: Let’s go to that first trigger, Senator, because at your request, I actually read the bill over the weekend.

JK: Right, isn’t that wonderful reading? And by the way, we did solve the problem that you’d…Bill Bennett even said now Hugh Hewitt raised this question about the very first paragraph, and I presume you’ve got the answer to that…

HH: I don’t. I was going to ask…what happened? What are you going to do about that?

JK: Well, no, it was written correctly. And let’s explain to your listeners what you were talking about there. The very first paragraph of the bill says in effect, I don’t have it here in front of me, but it says in effect, except for, and it names about three sections of the law, nothing happens with these illegal immigrants in any permanent way until the triggers in the bill are met, namely the fencing, the Border Patrol agents, the electronic verification system’s up and running, all of the things that we want to see in place ready to go before any temporary visa would be issued to an illegal immigrant. The exceptions are things that you would assume would be excepted. For example, they are all required to come in, have their fingerprints taken, and issued a parole card, which is their really temporary card, while we’re waiting for the trigger to be pulled. That’s one of the exceptions. I’ve forgotten what the items are.

HH: Well mostly, it’s the probationary benefits conferred by 601H which concern me. So if they, let’s say we’ve got 12 million, and they get their Z visas, then they’re…and you don’t bounce them out in two days, two business days, because that’s what’s given for the background check, they hold onto those temporary visas until the triggers are hit, right?

JK: No, they do not get a Z temporary visa. That’s the point. They only get, and it’s gone by different names, a floppy card, or a parole card. But nobody gets a Z visa until the triggers are pulled. And so that first parole status only allows them to stay here temporarily, subject to the conditions of parole, have their fingerprints taken, and pay a processing fine. They don’t get their Z visa.

HH: Let me read for our audience, here’s 601H. “An alien who files an application for a Z non-immigrant status shall upon submission of evidence required, and after the Secretary has conducted appropriate background checks to include name and fingerprint checks that have not by the end of the next business day produced information rendering the applicant ineligible, A) be granted probationary benefits in the form of employment authorization pending final adjudication of the alien’s application, B) may, in the Secretary’s discretion, receive advance permission to reenter the United States pursuant to existing regulations, C) may not be detained for immigration purposes determined inadmissible or deportable until they’re determined either admissible or not for Z, and may not be considered an unauthorized alien.” So they’re regularized, right?

JK: No, but they are given a temporary status which permits them to stay here, to work, to travel, and not be picked up as illegal, the exact four things that you just read. And you also saw pending, I forget the exact language, but the bottom line is while the government gives them that card as soon as the fingerprints are taken, if the government finds out at any time thereafter that the individual is inadmissible, in other words, that he doesn’t actually qualify, even though that didn’t appear to be the case in the first 24 hours, then without any further proceedings, the individual is removable. So even though the government might not be able to find out that somebody’s a terrorist or a criminal within the first 24 hours, when that information comes to our possession, we can, in fact, remove them. They waive all rights to contest that.

HH: Okay, so we give them the floppy card, or the almost Z visa status, whatever it is…

JK: Right.

HH: If the triggers never get pulled, what happens to them?

JK: Well, that’s a good question. They stay in that sort of limbo land where you can’t kick them out, on the other hand, they don’t have any of the semi-permanent status of a Z visa holder, they wouldn’t be paying into the Social Security system, or getting any kind of benefit like that, even if they’re working.

HH: That could go on for years, couldn’t it, Senator?

JK: Well, it theoretically could, but the reality is the elements of the trigger are all such that the money either has been appropriated, or should be appropriated, and the building of the fencing, for example, is imminently doable. They’ve calculated that they can in fact do 371 miles of fencing within 18 months. The think which is likely to, or could conceivably take longer than 18 months is the development of the electronic verification system. This is the part of the program that’s absolutely critical, unlike in the 1986 amnesty, where there was no real way to verify a person’s eligibility for employment, we’re going to have that now, and it’s all electronic, and it will take a while to set up all these computer programs. That might take a little bit more than 18 months.

HH: Talking with Senator Jon Kyl of Arizona. Senator, Mark Krikorian of the Center For Immigration Studies says look, the U.S. visit check-in, check-out system was authorized 11 years ago in 1996. It’s still not working. Why is the EEVS system going to be any more successful as a trigger than the check-in, check-out system?

JK: Yeah, and that is a great question. There’s also an entry/exit component to this bill, which is going to have to work. But the electronic verification system has been designed, the Department of Homeland Security says they believe that they can get it up and running within 18 months, but they acknowledge it’s not going to be easy. There’s a lot of work to be done, but they think that they can get it done. But again, until it’s done, the trigger isn’t pulled.

HH: Can the people with the probationary status move around the country?

JK: They have freedom of movement, they can be employed, they can leave the country and reenter, and they are not picked up. Beyond that, it is literally a temporary status, basically a holding pattern, until they get their Z visa. And they won’t get their Z visa until the trigger is pulled.

HH: Now Senator, if we have jihadis in the country who have good cover, and are clean, and have not been detected before, they’ve overstayed visas, they’ve come in over the Southern border, they’ll get one of these floppy cards, right?

JK: If they otherwise qualify, they would receive one of the cards, and have it until we found out what their status was. So there’s no difference from today. You said if they’re clean, they don’t have any record. So they’re here today, they’re not apprehended, and one of the things we hope is that by having all the people who are legal come in, get fingerprinted, and be given this temporary status, that we can then concentrate on the 15% or so of the illegal people who are here who are criminals, hopefully nobody’s a terrorist, but there might be some, the people that we really want to catch. Right now, we’ve got to worry about all 12 million.

HH: But at least we know that they can’t get work driving a truck, or working in a fertilizer factory, because at least it’s going to be difficult for them to get that employment. Isn’t that the case, Senator?

JK: You mean today?

HH: Yeah.

JK: It’s not hard today. All they’ve got to do is have a fake driver’s license, or a fake Social Security card, and you’ve got probably six or seven million people at least working in this country every day with those fake documents.

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HH: Senator, I understand you’ve got stuff going on the floor. If you have to run out, just say so, and we understand that completely.

JK: Yeah, we’ll certainly let you know. Hugh, can I just inject one thing here?

HH: Please.

JK: Like two lawyers, we’ve gotten right down into the weeds talking about section 602H, subsection whatever. Could I go back up to 30,000 feet just for a second?

HH: Okay.

JK: To kind of set the stage here, I come from a state, like California, which is really hurting from illegal immigration, and my constituents in my last reelection in November said do something about illegal immigration. I come back to Washington, and I see Ted Kennedy writing a bill. Now Ted and I don’t agree. I’m a conservative Republican. He’s a liberal Democrat. And I know that for example, on allowing people to stay in this country who came here illegally, that’s going to be in a bill that Ted Kennedy writes. It’s also going to be in a bill, if that’s his bottom line, that I am trying to work with him on. There are some things that I hate, like allowing people to stay here who came here illegally, that one way or another, with a bill that Ted Kennedy’s going to have a hand in, that’s going to be in the legislation. The question I had was, given that that’s going to be the reality, would it be a whole lot worse if he wrote the bill by himself, or could I put some restrictions on this, and really get some things that conservatives need out of this, if I get in the game and battle with him? I got in the game, and we’ve had a series of negotiations that lasted about three months, that have resulted in a bill which is obviously far from perfect, has many things in it I don’t like at all, I’m very much opposed to, but has at least an equal number of things that he hates, and wishes were not in there. And so we’re now putting this bill out of the floor, everybody’s looking at it, debating it, attempting to amend it, and anybody that wants to find ten things wrong with this bill, I can tell them what the ten things are in a jiffy, whether you’re a liberal or a conservative. The question is, is it within the ballpark that solves the problems that we Americans are facing with the problem of illegal immigration such that it is worth pursuing to a conclusion? And unless it is substantially changed in a bad way, I believe it falls within that category. Now having said that, I’m willing to get right back in the weeds and talk about any particular provision that you’d like.

HH: Okay, here’s my 30,000 look, Senator. Why, given this negotiation, don’t we get the whole fence built as a trigger? And why don’t we distinguish between Spanish and English speaking illegal immigrants, and those from countries of special interest? Those are my two biggies.

JK: On the fence first of all, we, there’s a tension between the effort to try to get these people so-called out of the shadows, though I hate that phrase, because it doesn’t take much if they’re marching, for example, to get them out of the shadows, but they do live in some degree of fear, they can’t report crimes against themselves, they are a problem as long as they are not regularized in our society. And so there’s a tension on the one hand to immediately try to begin a process to get them to come out of the status that they’re in, get right with the law, get us their fingerprints, make sure we can check them out to see whether they ought to be here, and if they are, begin to put them on a status where they will start playing by our rules rather than their, and being an underground, where it hurts them and it hurts everybody else associated with them. If you take too long to do that, then I think this whole thing is not going to be successful. So you try to have a trigger, set of triggers that are actually going to work to accomplish a lot of goals within a relatively short period of time, and those are your two immediate objectives. If you wait until you have the border shut down, I mean, I don’t know how many years that’s going to take, but among other things, we will advance that time if we have, in my opinion, a temporary worker program that relieves the magnet of illegal employment. And that can’t happen until this bill starts working. So we finally made a judgment that of these are relative to each other, and if we can get a really good effort at the border, and get this temporary worker program ready to go so that it begins to relieve the pressure on the border, get an electronic verification system so we stop illegal employment, then it is worth proceeding to grant a Z visa to the illegal immigrants to enable them, then, to settle into four years, at least, of residency here in the United States under our rules.

HH: Your old colleague, Fred Thompson, said the other day, nobody believes anybody about this…

JK: Yeah.

HH: And that’s why…

JK: That’s true.

HH: …there’s so much suspicion…

JK: Yup.

HH: If you only give 3,000 Border Patrol, we’ll never see the next 9,000. If you only build 374 miles of fence, we’ll never see the remaining 400. Why not just do it all now? You know, this is the United States of America, Senator. We can do this. You can hire 8,000 Border Patrol agents and build 700 miles of fence.

JK: I mean, obviously, it takes some time. It could be done much more rapidly…well, I shouldn’t say…it could be done more rapidly than it’s being done. The Border Patrol will tell you they’re doing it as fast as they can. They’ve had to open more training facilities so they can turn out more agents at a time. We were turning them out at a very slow pace. They say if we try to turn them out any faster than this, we’re going to get a bunch of bad apples, they’re not going to be able to learn Spanish the way that we want them to do deal with the illegal immigrants, and you know, all of this just takes a little bit of time. If you’re asking me, we could do it a lot faster. However, again, everything in this bill is a matter of negotiation, and this was the spot that we decided on, based on all of the different considerations. Your point is the fundamental point. Both sides are not believable in this, because both sides have, in effect, forgotten about the rule of law. No administration, neither the Clinton administration nor this administration have adequately enforced the law. And so people rightly say what makes us think we’re going to enforce it in the future? By the same token, the other side is of the opinion that as soon as we entice them out of the shadows, we’re going to somehow nab them, or if we make them go to their home country to apply for this new status, we’re not going to let them back in the country. There’s a huge amount of distrust there. And so part of this is building that trust back up so we can get on with this.

HH: So will amendments increasing the Border Patrol rapidly, and adding more miles to the fence be successful? Or will they kill the bill?

JK: Well, one amendment was just adopted. It did add more Border Patrol agents, and more vehicle barriers. It did not add more miles of fence. And it’s already adopted.

HH: But would other ones be successful? Adding more fence? Because I actually, I don’t think I can, I’m not going to be one of those guys persuaded it’s enough. I think we could build 800 miles of it if we wanted, but that’s just me. I’m just wondering what the politics are.

JK: I think probably, you know, we have 700 miles authorized, and that’s the number that everybody that knows much about this…

HH: Right.

JK: …in a 2,000 miles border…

HH: Right, I agree.

JK: Fencing works for about a third of it, and then some other things work for other aspects of it. Yeah, we could probably have a crash course, spend a whole lot more money, I mean, obviously, it costs you more if you crash, to build more miles of fencing. But the 371 doesn’t stop. The next day, they just keep right on building, so it’s not like they stop.

HH: I hope they get that crash course. Now let me ask you, Senator, have you read the San Antonio Express News series on aliens from the Middle East?

JK: No, I have not.

HH: 5,700 arrests of such special interest immigrants, between 40,000 and 60,000 believed to have entered the country since 9/11, they’re from countries with jihadi networks. Should we be treating these people the same as Mexican, Central American economic migrants?

JK: No, and there are a number of people that have also been apprehended coming across the border from countries of special interest, so we know that they’re, I mean, we don’t know how many, but we know that there are, let’s say, a lot, in the thousands, of countries of special interest, namely where terrorists are spawned. And is that music that’s…

HH: Yeah, can we keep you? Or do you…

JK: Yeah, because we need to pursue this a little bit further.

HH: All right, we’ll be right back with Senator Jon Kyl when we return, radio savvy, I might add.

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HH: Senator Kyl, we’re talking about the San Antonio Express News series saying that 5,700 special interest immigrants caught crossing the border, 40,000 to 60,000 in the country, including Tamil Tigers, Hezbollah terrorists, financiers, sympathizers, all of whom are in line to get the probationary status if they don’t have fingerprint records. And I have to assume lots of them are clean, or that we can’t investigate them. Why are we doing that?

JK: Well, let’s back up. What are we doing today?

HH: Well, at least if we find them today, we can throw them out.

JK: Sure. And if we find them tomorrow, we can throw them out. If you have a criminal record, or if you are a member of a gang, or if you have connections to a terrorist organization, or believed to be a terrorist, that you cannot, you are ineligible for the status of this temporary status.

HH: But if we don’t know, they can go in and out of the country.

JK: That’s right, and they can do that today.

HH: But not legally.

JK: Well, of course not, but this is the point. Today, you have people that come in and out of the country, especially by crossing the border, some come in legally and then overstay visas, and we have very poor records of these people, and it is possible for a terrorist to come into this country, and we don’t know it. And thousands of criminals cross our Southern border every months. Now that’s the status quo. And you can say well, we should do something about that. Okay, this bill tries to do something about that, in two key ways, or three key ways. First of all, we continue to enhance our border security, secondly, we make it very difficult for anybody to be employed in this country if they don’t have the proper documentation, third, we explicitly increase the number of people whose job it is to catch criminals and terrorists and others, as well as to audit companies that employ people to make sure that they’re complying with the electronic employment verification…

HH: But Senator Kyl, if in fact we’re making it very hard to get work in this country if you don’t have probationary status, if we only give probationary status to Mexican and Central Americans, we will isolate those people who are most likely to be jihadists. We’ll make it very hard on them to stay in this country, because they won’t be able to get work, because we’ve given away 12 million probationary work cards. Why don’t we want to do that?

JK: Well, what we haven’t done is to explicitly distinguish one country from another. But we, in other words, let’s say Syria.

HH: Saudi Arabia.

JK: Or Saudi Arabia from the country of Mexico or El Salvador. But you could have a Salvadoran gang member, for example, there’s a…

HH: Yup.

JK: …virulent gang. So do we say that all Salvadorans, then, are denied the benefits of this?

HH: I think that might be a pretty good argument…

JK: Well…

HH: …but I’m certainly sure about the Middle Eastern countries.

JK: Yeah, it might be an argument, but what was done here was to try to find the people through the mechanisms that we’ve built into the bill that don’t currently exist in law, as a way to try to improve the situation that we have today.

HH: Last question, Senator, because you’ve got to go. 11 million, minimum, new applications, 11 million face to face interviews. I used to be the deputy director of OPM running the office of security. Those are time intensive, workforce intensive. The bill does not increase by an agent, or a DHS employee. Who’s going to do all that work? It’s never going to get done.

JK: Well, you’re right about the magnitude of the task. It’s divided basically into two segments, the second of which has a long time frame, which will spread it out. The first is that everybody has to come in and get these fingerprints, and that’s why we said if we don’t know within 24 hours whether you are a criminal, we still have the right to come back after you if you are. And by then, we have your fingerprints. So that’s the first thing that happens, but it’s not a big face to face interview. That comes when you apply for your Z visa, but that is then done over a period of a couple of years, so the hope is, and expectation is, that there’ll be more time to process people then.

HH: But there aren’t any additional…given that DHS is busy right now, and the FBI is busy right now, who’s going to do this work without displacing critical missions already underway?

JK: Well, one of the questions that the Department of Homeland Security is wrestling with right now is what they are going to need, and what they’re going to need in the next budget submission. I know I’ve talked to Secretary Chertoff. He is, in fact, we had a meeting today in which this exact question was raised about what he has in the budget for this year, and what he’s going to have to put in the budget for next year. And there’s no question that there are a lot of different areas in which they’re going to have to beef up substantially.

HH: Senator Kyl, a great pleasure. I hope you’ll come back next week, as this interview comes along further.

JK: Thanks, Hugh.

HH: And thanks for your efforts. I know you’re taking a lot of bricks…

JK: That’s right. You’re doing a good job in helping to try to get things explained. I appreciate it very much. Thanks, Hugh.